Sunday, 23 September 2007

Reclaiming the Judiciary FOR the RAKYAT: Malaysian Bar Council Walks the Talk

Quote:

We have gone from one crisis to another since the 1988 judicial crisis.

It is time to confront FULLY and COMPLETELY ALL the issues that have arisen since then.

For too long we have watched the confidence in the Judiciary wane.

For too long we have watched the judicial appointment process become unfathomable and shrouded in secrecy.

For too long we have heard criticism after criticism about the Judiciary.

For too long we have cried out for reform, but the authorities have not heeded our pleas.

We have a duty to the public to act.

We have a duty to the many good, honest and hardworking judges, to act.

We have a duty to the institution of the Judiciary to act.

We have a duty to ourselves as Malaysians, and to civilised society, to say loudly that: Enough is Enough.

- President, Malaysian Bar Council

UPDATE:

Chief Justice Ahmad Fairuz Sheikh Abdul Halim has denied as being the person at the end of a telephone conversation with prominent lawyer VK Lingam to broker the appointment of judges.

This was revealed by Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz last night, who said that Ahmad Fairuz had contacted him to issue the denial.Read here for more

MUST READ:PRESS STATEMENT from ALIRAN, "Why is the Chief Justice whispering to Nazri?"Read here

"Ahmad Fairuz owes an explanation to the nation. He is duty-bound to clear his name and uphold the integrity of the judiciary.

Instead of doing this, he quietly rings up Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz to deny that that he was “the person at the end of a telephone conversation with prominent lawyer V K Lingam”.

Why can’t he speak directly to the people who are devastated by the Lingam tapes. Why does he need a third party? Why does he need a messenger to convey this bit of news?. Read here for more

MP Lim Kit Siangis convinced that VK Lingam was chatting with Chief Justice Ahmad Fairuz Sheikh Abdul Halim in the latest video scandal to rock the nation. In a press statement , the veteran politician listed out several reasons for this conclusion. Read here for more

From the President of the Malaysian Bar Council, Mdm. Ambiga Sreenevasan Read here for more

"...Yet again a crisis has emerged in the Judiciary.

The rot and shaken confidence in the Judiciary began with the 1988 Judicial Crisis which involved the suspension of 6 Supreme Court Judges and the subsequent removal of 3 of them including the then Lord President.

Since then numerous other allegations have surfaced which have not been taken seriously.

- For too long we have watched the confidence in the Judiciary wane.

- For too long we have watched the judicial appointment process become unfathomable and shrouded in secrecy.

- For too long we have heard criticism after criticism about the Judiciary.

- For too long we have cried out for reform, but the authorities have not heeded our pleas.

Malaysians cannot afford to stand by and watch any longer. The time has come for us to act decisively.

The videotape raises at least the following questions:

(1) How exactly were the appointments of Judges made at that time and since 1988, and what was the basis?

(2) Were appointments determined by outsiders to the process under the Constitution (involving e.g. businessmen or litigants), and how was this allowed?

(3) Who are the “key players” in the Judiciary referred to in the conversation?

(4) Who were the “soldiers” referred to in the conversation?

(5) Who were in the “other camp” referred to in the conversation?

(6) Who were the people who “fought for us”? Who is “us”? Who are “our friends”?

(7) What was the “private arrangement” referred to in the conversation?

(8) What was the 110% loyalty referring to?

(9) What was the nature of the relationships between the businessman, the lawyers, the politicians and members of the Judiciary?

These and many other questions raised by the video cry out for answers.

It underscores the need for a Judicial Commission.

If there is no truth in the allegations or inferences arising out of the video, then the parties concerned must be vindicated.

If there is truth in the allegations (or in some of them), stern and appropriate action must follow.

Either way, silence, dismissal, lukewarm responses or lack of action are NOT options for the Government.

The response of the Chief Justice on Friday (21 September 2007) that he has no comment in response to the video clip is unacceptable but telling.

It is most disappointing to hear of official responses that seek to divert attention to the whistleblower, and threaten possible action against such person should the allegations turn out to be untrue.

To do so at this stage casts serious doubts on the willingness of the authorities to properly and impartially investigate the matter. It will instead be a case of shooting the messenger.

- We have a duty to the public to act.

- We have a duty to the many good, honest and hardworking judges, to act.

- We have a duty to the institution of the Judiciary to act.

- We have a duty to ourselves as Malaysians, and to civilised society, to say loudly that: enough is enough.

"...The VK Lingam video clip reveals the depths of degradation into which our judiciary has sunk.

Make no mistake, though. The rot set in a long time ago. Well before Fairuz’s time. Because we did not have the courage to stand up to Dr M, Abu Talib and Hamid Omar.

Yes, the rot set in round about 1987-1988.

The Salleh Abas sacking was the start.And it has been downhill ever since.

Do not make the mistake of imagining that there is only one rotten apple in the judicial basket. And do not be mistaken into thinking that the judiciary might be restored merely by removing the rogue judge exposed in the video clip.

Nothing short of a purge will do. Every single cancerous cell that now eats away at the integrity of our judicial system must be removed.

Pak Lah’s government does not have what it takes to set things right.

This task falls on us, the citizens.

Petition to the Agong

The People’s Parliamentwill be launching a Petition to His Majesty the Yang Dipertuan Agung to urge His Royal Highness to take all steps to clean up the judiciary and to return this constitutional institution back to the rakyat.

It is hoped that this petition will be submitted to His Majesty together with the petition presently being managed by RPK.

This petition is your petition. I will draft it and launch it on your behalf.

I will therefore let you have a say as to its contents.

From now until 10 p.m. tomorrow, you may send your suggestions as to the matters relating to the judiciary that you wish to have brought to the attention of His Majesty to:

"...Save the Judiciary March:If you are a Malaysian and you care about this country's future, please join me this Wednesday, 26th Sept, at 11 am in Putrajaya.

Together, we will march peacefully from the Palace of Justice to the Prime Minister's Department, where we will hand over a memorandum to the PM demanding that his administration stop the rot in our judiciary.

Other Malaysians will march with us.

Buses have been chartered and will leave the Bar Council's secretariat at 9 am to take us to the march.

Those who prefer to make their own way to the Palace of Justice, do so..."

"... Concerted attempts will continue to be made by certain elements among the powers-that-be to capture the current heated discourse on the explosive expose that has brought the appointment and promotion of Judges into question. Then, they will control and conduct the course of this discourse.

Admittedly, calls have been made by several organisations to set up a Judicial Appointments Commission and review the unceremonious sacking of Tun Salleh Abas as the Lord President in 1988.

These calls have not only fallen on deaf ears, but have also been met with responses they do not deserve.

Any government invites rebellion if it does not respect the very laws on which is predicated its very legitimacy.

From the way the discourse is going, more questions have surfaced than is necessary. For instance, why is the Chief Justice described as "a senior Judge"? And when was the denial given to the Minister?

I find it totally unacceptable that the Chief Justice has suddenly found it fit not to directly deny in public his scandalous role in the video clip.

I find it totally unacceptable that the Chief Justice, no less, has ipso facto breached the Doctrine of the Separation of Powers.

This mode of denial is macabre when it is recalled that the Chief Justice had only recently reflected a certain level of articulation in his ill-conceived call for the replacement of the Common Law.

I am confident that the Chief Justice is totally capable of speaking for himself.

If he fails to convince Malaysians that he has done no wrong, then the only honourable course left open for him is to step down in the interest of our nation.

"... The video clip involving a senior lawyer and allegedly, the Chief Justice has provoked so much outrage and angst among the right thinking members of this honourable profession.

The manner in which the Prime Minister has dealt with the video clip is nothing short of being woeful and cowardly.

The fact that the Chief Justice has, some 4 days after this expose’, only seen fit to say “no comment” when the entire foundation of his appointment starts to crumble, is indicative of the disregard and esteem he has for his role.

Perhaps, it is because he does not have the conscience of a judge but rather found solace in the conscience of serving a different master.

It is time to ask – what do we want now?

Do we want to just stand back and wonder in amazement as corruption destroys us or do we want to stand up see real changes take place?

As lawyers, we are duty bound “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour” as per section 42 of the legal Profession Act.

Our failure to do so, is not only a departure from the ideals of the legal profession, but really confirms that we are no different from the people portrayed in the video clip.

The bold decision by the Bar Council to submit a memorandum to the Prime Minister and the Malaysian Cabinet on Wednesday for the setting up of a royal commission to investigate the video clip, in addition to holding an extraordinary general meeting (EGM) is a step in the right direction.

The current government must realise that the only way they can come out of this mess “smelling like roses” is to push for the establishment of the independent commission.

But is this really enough?

I feel that a long term solution is to continue pressing for the establishment of an independent commission for the appointment and promotion of judges.

Time and again, the Bar Council, prominent politicians from both spectrums, judges and right thinking members of society have clamoured for the creation an independent commission for the appointment and promotion of judges.

Prior to 1988, the Chief Justice would, after the necessary police vetting, forward a name (after police vetting) to the prime minister. This process also included in the Chief Justice consulting the Bar chairman and other senior Bar members.

The events of 1988 saw the end of this process. Appointment and Promotion of judges were left to basically to the Chief Justice and the Prime Minister.

Never have the fate of so many been decided by so few.

No doubt, only those with the right political patronage and right beliefs were considered as suitable.

Failure to move towards an independent commission would only strengthen the belief that the Executive does not care if the judiciary is besieged with allegations of corruption.

It also means that the Executive condones such blatant disrespect for the law and order.

As the Chinese are fond of saying “a fish rots from the head”, it signals that this country spiralling towards a breakdown of independence, accountability, transparency-all key indicators of a healthy nation.

Why should the integrity of this nation’s judiciary be placed in the hands of the Chief Justice and the Prime Minister?

Enough is enough.

It is time to act decisively, and to tear down the wall of unaccountability, unreliability and dishonesty once and for all..."

It was neither elegant nor silent; instead it was ugly and spoke volumes.

The quality of the (video clip) recording is such that it is unlikely to be a fake. With today’s forensic capabilities, it would be foolish for anyone to even attempt this. The lawyer concerned was speaking on his cell phone, meaning, there will be the inerasable digital trail. My monthly cell phone bill details my outgoing and incoming calls. Because of the quality, the video could not be shot surreptitiously as with a cell phone a la the earlier “nude ear squat” episode. Besides, such a device was probably unavailable back in 2002.

The rot in the judiciary predates Abdullah. However, he had the opportunity to reverse the trend or at least stem the decline with these new appointments, but as with the massive electoral mandate he received in 2004, he squandered it.

I was stunned that Chief Justice Fairuz, when confronted with the evidence that he had promoted judges who had been delinquent with their written judgments, would write to the Prime Minister instead of handling the issue himself.

Presumably Fairuz was awaiting arahan (directive) from the Prime Minister. So much for his appreciation and understanding of the concept of separation of powers!

That more than anything reflects the caliber of Fairuz. Don’t get me started on the quality of his legal writings and commentaries! "

Instead of responding POSITIVELY to the concerns of the rakyat of complaints of abuse of power and influence, this UMNO-led Govt is diverting attention to condemn, incarcerate and punish citizens who report such abuse of power and influence.

PleaseWAKE UP PRIME MINISTER, the landslide mandate the voters gave you and UMNO to lead this Govt is to fix the rot, in the public service, in the political institutions, and especially now, in the judiciary.

The nation comes first, not UMNO, not UMNO members, not UMNO cronies or UMNO families and relatives.

Your Ministers are out of touch of the 21st century Malaysia and still dabble in the racial and communal politics of the 1960s and 70s.

It is time for UMNO NOT to abuse the wordBangsa and confuse the rakyat with Race and Nationality.

The Malays today are no more like the Malays of 1960s. They are more educated, more worldly in their views and have the nation first.

We call on the Council of Rulers to help stem this rot and to rein in UMNO's excessive racist politics that is dividing this country to a point of NO return..."

".... President of the Bar Council, Ambiga Sreenevasan, is right when she commented that notion of the manipulations of the judiciary has been rife since the “judicial crisis” of 1988(i.e. the sacking Lord President Salleh Abbas through the conspiratorial initiative of politicians).

I have a number of friends who are prominent members of the legal and judicial fraternity – and it was they who over the years have been instrumental in reinforcing my own perception of the judicial rot.

Over the last few weeks I have had two interactive experiences with friends from the legal fraternity who appear to me to be people very frustrated and disappointed with the state of their profession.

The first event was the dinner reception organised by the Singapore High Commission in conjunction with the Singapore National Day at Shangri-La Hotel on August 9, 2007. The event gave me an opportunity to meet and mingle with a number of senior and reputable lawyers in Kuala Lumpur.

I was quite shocked to hear that they almost unanimously believed that the country’s judiciary is experiencing a rot. One of them even went so far as saying that he believes almost all the sitting judges are “cowards and corrupt.” And he was saying it rather loudly and clearly, within hearing range of other guests.

When I inquired another prominent lawyer friend about how his legal practice was doing the answer, I thought, was interesting: “Boleh tahan. But I would have been more comfortable if I could be appointed a Judicial Agent.”

Perhaps noticing the bewilderment in my facial expression, he quickly proceeded to define what a “judicial agent” is: A person who sets up a desk in front a judge’s chamber to offer clients judicial judgments they require for a price, and the agent can collect say 10 percent of that price.

The five or six other lawyers around him laughed heartily and approvingly at the joke.

As the Altantuya murder case being tried at the Shah Alam High Courts, I naturally had to ask these lawyer friends about it. Again, a topic of such importance to the legal profession was dismissed off in a joking manner.

They even offered me a “prediction” of the outcome of the trial, and I was shocked with disbelief. They reminded me about haphazard changes of judges, last minute changes of the prosecution team, and of the claimed “third party” meddling with the appointment and strategies of the defense lawyers.

They also explained to me how the trial is “one of a kind” – one in which both the prosecutor and the defense are on the same side.

The shared concern of both sides, according to the lawyers, is to ensure that the name of a certain powerful politician is not even mentioned in the trial.

“Can you seriously believe that there is no outside interference trying to influence the conduct and the outcome of this trial?” asked one of the prominent lawyers to me. But I did not hazard an answer, realising how ignorant I am about matters of the law and the administration of justice.

Another experience that helped to strengthen my negative perception of the judiciary was my participation as a panelist at the forum on “Democracy and Nation Building” jointly organised by Suaram, Amnesty International and Human Rights Committee of the Bar Council on 6 September 2007.

As the Bar Council was involved, there was quite a number of lawyers in the crowd (easily identifiable by their black suits). The difference this time is that the crop of lawyers are younger(therefore more enthusiastic about issues of human rights and democracy) as compared to the older group I met at the Singapore national day reception.

But the younger ones too seem to show signs of disillusionment and frustration with their profession. As by then the burning issue of the judiciary was the appointment of judges (nobody even seems to remember about the ongoing Altantuya trial any more), I therefore conversed with them on that issue (which had even attracted the involvement of the Rulers).

Again, I was surprised to find out that the otherwise idealistic and socially aware young lawyers had taken an attitude of mocking whatever is taking place in the appointment process – especially in the appointment to a very high judicial position someone whose only experience and qualification was being a legal counsel retained by Umno!

Even from a moral perspective, it seems, that appointment could NOT be justified. One young lawyer was bold enough to say it loudly and clearly at the forum: “The appointment even send the wrong message on the moral qualification for becoming judges – that it’s OK to cheat on your wife and still become a leading judge.”

On the involvement of the Rulers, the young lawyers seem to think that historical experience shows that the Rulers have proven to be not that reliable, although on the issue of arresting the current judicial rot it may be the only and the last constitutional institution that we can hope to rely on.

So by the time the Anwar exposes appeared, I have ceased to be surprised by any new revelation on the rot in judiciary.

I was, nevertheless, still shocked by the clarity of the empirical evidence and on seeing the kind of crass and downright immoral transaction and communication that could take place between a prominent member of the Bar and a leading member of the Bench.

My only hope is that something socially positive could still be generated from the graphic evidence provided by these video and audio exposes – both in term of invoking the constitutional role of the Rulers and inflicting the powerful impact of public opinion – in order to save us all from degenerating further into a full scale legal and constitutional anomie. ..."